UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4717

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
ERNEST ELI COOK, III,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:10-cr-00433-CCE-1)

Submitted:

November 22, 2011

Decided:

December 7, 2011

Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished

per curiam opinion.

Louis C. Allen, III, Federal Public Defender, William S.

Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.
Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Ernest Eli Cook, III, appeals from his conviction and
sentence of 204 months imprisonment for possession of a firearm
by a convicted felon, in violation of 18 U.S.C. 922(g)(1)
(2006).

On appeal, Cook challenges the district courts denial

of his motion to suppress, claims that his conviction exceeds

Congresss authority under the Commerce Clause, and asserts that
he was wrongly sentenced as an armed career criminal.
Also pending before us is a joint motion to vacate
Cooks sentence and remand for further proceedings in light of
United

States

banc).

v.

Simmons,

649

F.3d

237

(4th

Cir.

2011)

(en

The parties contend that Cooks three North Carolina

convictions

for

breaking

and

entering

into

residence,

in

violation of N.C. Gen. Stat. 14-54(a) (2009), are not properly

considered felonies under 18 U.S.C. 924(e)(1) (2006), and,
therefore,

that

Cook

should

not

have

been

subject

to

924(e)(1)s fifteen-year mandatory minimum or classification

as an armed career criminal.
we

affirm

suppress,

the

district

affirm

his

For the reasons set forth below,

courts

denial

conviction,

grant

of
the

Cooks

motion

to

joint

motion

to

vacate his sentence, and remand for resentencing.

First, we find that the district court did not err in
denying

Cooks

outgoing

mail

motion
by

jail

to

suppress

officials
2

because
did

not

the

search

violate

the

of

his

Fourth

Amendment.

We

constitutionally

have

held

conduct

that

warrantless

prison
search

official
of

an

may

inmates

outgoing mail so long as the search is reasonably related to

legitimate penological interests.

Altizer v. Deeds, 191 F.3d

540, 547 (4th Cir. 1999) (internal quotation marks omitted).

As

the U.S. Supreme Court has often observed, the investigation and
prevention

of

ongoing

illegal

inmate

activity

furthers

the

legitimate penological objectives of prison security and inmate

rehabilitation.

See Thornburgh v. Abbott, 490 U.S. 401, 411-12

(1989); Procunier v. Martinez, 416 U.S. 396, 412-13 (1974); see

also United States v. Workman, 80 F.3d 688, 698-99 (2d Cir.
1996).
Here, jail officials search of Cooks mail was part
of

an

effort

to

prevent

him

trafficking in stolen goods.

on

reasonable

contained

belief

information

from

further

secreting

or

Because their actions were based

that

the

regarding

correspondence

such

criminal

in

question

activity,

the

search of Cooks mail was reasonably related to a legitimate

penological interest and did not offend his Fourth Amendment
rights.
Additionally, we find meritless Cooks claim that his
conviction

for

violating

Congresss

authority

under

18

U.S.C.

the

Commerce

922(g)(1)

exceeded

Clause.

As

Cook

concedes, we have previously held that 18 U.S.C. 922(g)(1) is

3

legitimate

interstate

exercise

commerce

of

Congresss

because

the

authority

statute

to

regulate

expressly

requires

proof of a nexus with interstate commerce.

United States v.

Gallimore, 247 F.3d 134, 138 (4th Cir. 2001).

Finally, regarding the parties joint motion to vacate
Cooks sentence, we hold that, in light of our recent decision
in

Simmons

and

the

record

before

us,

sentenced under 18 U.S.C. 924(e)(1). 1

United

States

v.

Harp,

406

F.3d

242

Cook

was

improperly

In Simmons, we overruled
(4th

Cir.

2005),

and

determined that whether a particular offense was a felony must

focus on the maximum sentence for which a particular defendant
was eligible, in light of his criminal history, rather than the
maximum sentence that could be imposed on a defendant with the
worst possible criminal record.

Simmons, 649 F.3d at 241-47.

Here, Cooks sentencing under 18 U.S.C. 924(e)(1)

was predicated on his three previous North Carolina convictions
for felony breaking and entering into a residence and one North
Carolina conviction for felony robbery with a dangerous weapon.
The North Carolina judgments included in the record before us
indicate

that

at

least

two

of

Cooks

three

convictions

for

breaking and entering were Class H felonies, and that he had a

1

We of course do not fault the district court for its

reliance upon, and application of, unambiguous circuit authority
at the time of Cooks conviction and sentencing.

Prior Record Level (PRL) of I at the time of each conviction. 2

Under North Carolinas structured sentencing law, no person with
a conviction for a Class H offense and a PRL of I could receive
more than ten months imprisonment.

See N.C. Gen. Stat. 15A-

1340.17(c)-(d) (2007) (applicable to offenses committed on or

after December 1, 1995, and on or before November 30, 2009).
Therefore,

at

least

two

of

Cooks

breaking

and

entering

convictions do not qualify as a felony under 924(e)(1).

18 U.S.C. 924(e)(2)(B).

See

Consequently, we find that Cook lacks

the three violent or drug related felony convictions necessary

to trigger sentencing under 18 U.S.C. 924(e)(1).
Accordingly,
vacate

Cooks

consistent

with

we

sentence
Simmons.

grant
and

the

remand
By

this

parties
for

joint

further

disposition,

motion

to

proceedings
however,

we

express no opinion as to whether Cooks third North Carolina

conviction for breaking and entering properly qualifies as a
felony for the purposes of determining Cooks sentence, leaving
that determination in the first instance to the district court.
Therefore, we affirm the district courts denial of
Cooks motion to suppress, affirm his conviction, vacate his
2

Cook claims that his third conviction for breaking and

entering was also a Class H felony and that he was sentenced
based on a PRL of I, but we cannot verify this assertion as a
copy of the relevant judgment is not included in the record on
appeal.

sentence,

and

remand

to

consistent with Simmons.

the

district

court

for

resentencing

We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials

before

the

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED